United States of America v. Natividad Santana

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2857
UNITED STATES OF AMERICA
v.
NATIVIDAD SANTANA,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(District Court Criminal No.: 02-cr-00801-17)
District Court Judge: Hon. Harvey Bartle, III
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 29, 2005
Before: ALITO, SMITH, and ROSENN, Circuit Judges.
(Filed: June 6, 2005)
OPINION OF THE COURT
PER CURIAM:
This is an appeal by defendant Natividad Santana from a conviction for conspiracy

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to distribute and possess with intent to distribute one kilogram or more of heroin in
violation of 21 U.S.C. § 846. Santana pled guilty to the charge pursuant to a plea
agreement. Counsel for Santana has filed a brief under Anders v. California, 386 U.S.
738 (1967), stating that, after careful review of the record, he cannot raise any meritorious
issues and that the appeal is wholly frivolous. We also note that counsel submitted a
letter to the Court arguing for resentencing in light of the Supreme Court’s decision in
United States v. Booker, 160 L. Ed. 2d 621, 543 U.S. ___, 125 S. Ct. 738 (2005). We are
satisfied that counsel has fulfilled his Anders obligations. Because the appeal is frivolous
and because Santana is not entitled to relief under Booker, we hereby grant counsel’s
motion to withdraw and dismiss the appeal.
Santana is precluded from bringing an appeal due to a waiver contained in her plea
agreement. Under the terms of the agreement, Santana waived all direct appeals except in
the case that her sentence exceeded the statutory maximum or the sentencing judge
erroneously departed upward from the otherwise applicable sentencing guideline range.
The sentencing court reviewed this provision with Santana thoroughly during the Rule 11
colloquy. Santana was sentenced to 135 months--the minimum sentence under the
applicable guideline. Although Santana claims that her base offense level was improperly
determined, the record shows that she stipulated to the fact that her offense involved more
than 30 kilograms of heroin and that the guideline range was properly calculated. See
U.S.S.G. § 2D1.1(a)(3).

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“Waivers of appeals, if entered into knowingly and voluntarily, are valid, unless
they work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir.
2001). Santana makes no argument as to why the waiver of appeal should not be
enforced, and this fact alone is sufficient to dismiss the appeal for lack of jurisdiction.
Her pro se brief raises only an ineffective assistance of counsel claim and a claim that her
sentence violates the Sixth Amendment right to a jury trial, neither of which presents a
non-frivolous issue that can be addressed on direct appeal.
Santana’s asserted right to relief under Booker does not require this Court to
disregard her waiver of appeal. Our court has joined four other courts of appeals in
holding that “where a criminal defendant has voluntarily and knowingly entered into a
plea agreement in which he or she waives the right to appeal, the defendant is not entitled
to resentencing in light of Booker.” United States v. Lockett, 406 F.3d 207, 214 (3d Cir.
2005). Because Santana has not argued that her waiver of appeal was involuntary or
unknowing, her appeal on these grounds must be rejected. Although we acknowledge
that Santana might have received a lesser sentence under the post-Booker sentencing
regime, enforcing a plea agreement under these circumstances does not effect a
miscarriage of justice. See United States v. Brady, 397 U.S. 742, 757 (1970).
Finally, Santana’s ineffective assistance of counsel claims are premature. Santana
does not claim that her counsel’s allegedly deficient performance in any way impacted her
decision to waive her right to appeal, but rather that she was prejudiced by counsel’s

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statements regarding her sentencing exposure and his failure to raise arguments on appeal
based on Blakely v. Washington, 159 L. Ed. 2d 403, 542 U.S. ___, 124 S. Ct. 2531
(2004). Because the record does not contain the information necessary to decide these
claims, we will follow our usual practice of not deciding them on direct appeal. See
United States v. Thornton, 327 F.3d 268 (3d Cir. 2003).
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
Defense counsel’s motion to withdraw is granted.

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